When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.

Note the key item on this wish list: legal immunity for having participated in the illegal NSA program.

I particularly love the phrase "alleged to have assisted our Nation." In his letter to Congress the other day Intelligence Director Michael McConnell spoke of "liability protection for those who are alleged to have helped the country stay safe after September 11, 2001." Apparently "allegedly helped us stay safe" is Bush Administration code for telecom companies and government officials who participated in a conspiracy to perform illegal surveillance. Because what they did is illegal, we do not admit that they actually did it, we only say that they are alleged to have done it. Or perhaps the Administration is suggesting that although such parties are alleged to have helped the country stay safe, there's no evidence that their repeated violations of federal law actually did much to promote our security. No, they couldn't mean that.

My guess is that President Bush plans to award those who allegedly helped save the country with alleged medals.

Turning back to the language of the bill, the key provision at section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States", confuses me. Am I correct when I read that to mean it could even be a U.S. citizen who just happens to be "located outside of the United States"? Does the bill specify that the target must be a non-citizen?

What, other than the good faith of Alberto Gonzales, is to prevent the NSA from listening to purely domestic calls between U.S. citizens so long as the AG asserts, long after the fact, that he had reasonable grounds to believe that one of them was located outside the United States?

Apparently "allegedly helped us stay safe" is Bush Administration code for telecom companies and government officials who participated in a conspiracy to perform illegal surveillance.

That "conspiracy" included both elected branches of government with notice to the FISC. Given that heavy majorities of Congress just granted the telecoms immunity from NGO litigation when the government makes future requests to provide access for the TSP, apart from spite at the opposition party in the WH, I cannot see the reasoning for denying similar protection for prior instances when the government asked the telecoms to do the same thing.

My guess is that President Bush plans to award those who allegedly helped save the country with alleged medals.

The telecoms should be recognized for their services to the country. The telecoms are providing a substantial public service which, if used prior to 9/11, would very likely have disclosed that al Qaeda cell well before the attack. Reportedly, the TSP has broken up other cells and according to a convicted "Islamic charity" in Oregon, broke up al Qaeda funding networks.

I find it particularly sad, in a Doctor Strangelove kind of way, that Mr. Depalma confuses surveillance with safety, and equates acts of fascism as enobling freedom. Any reasonably sane person regardless of political affiliation must realize that in no way is the world safer now than it was prior to 911. If anything, the extremists are getting stronger and gaining new recruits every day. Iraq is now in the throes of a civil war, and was actually a stabler country under Saddam Hussein. And in no small irony, America - the country so gung-ho in exporting freedom to other nations continues to destroy the individual freedoms that our founding fathers fought so hard for, and our soldiers are allegedly dying for. I guess Kris Kristofferson got it right when he said: "Freedom's just another word for nothing left to lose." I just wonder how long it will take for America's citizens to wake up, before they indeed wind up with nothing left to lose.

I like Kristofferson as much as the next guy, but are you seriously claiming there was nothing that could have been done and no surveillance which, if used prior to 9/11, would very likely have disclosed those al Qaeda cells well before the attack? Sounds to me like you are still living in 9/10.

Bart wrote:if used prior to 9/11, would very likely have disclosed that al Qaeda cell well before the attack.

Such a claim is not certain enough to use as rational.

Reportedly, the TSP has broken up other cells and according to a convicted "Islamic charity" in Oregon, broke up al Qaeda funding networks.

Didn't the busted "Islamic Charity" in oregon get caught with a search warrant for illegally concealed transfer of funds that happened in 2000? If its the Oregon group in the news, how did they establish Al Aaeda ties? Just curious as I haven't see that part - just the parts where they sent funds to a Saudi Arabian banks and wired funds to Chechnyan rebels. Regardless, wasn't that prior to TSP?

P.S. to JB: Not sure how there could be a "wish list" if there was indeed a "Complete Capitulation" -- you missed Speaker Pelosi's statement about coming back in September to keep fighting the White House on this? McConnell's original request to Congress back in April was 66 pages long -- he finally narrowed it down to 11 pages of the most time-sensitive, critical needs -- I think those 55 pages are the "wish list" now.

Shortly after the World Trade Center attack, the USAG reversed government policy, and denied a request from the FBI to examine firearms transaction records at the ATF, because of 'privacy' implications. Several of the hijackers had purchased weapons.

Will the tracking of weapons transactions be prioritized to the same extent as my credit card transactions and phone/email communications?

If we had a functional EPA, George W. Bush's "commendation" of Congress would trigger an environmental alert. It billows enough smoke to scare off a 9/11 rescue worker. Still, let's wade in.

And when these same legal tools also protect the civil liberties of Americans, then we can have the confidence to know that we can preserve our freedoms while making America safer.

As with everything else he does, Bush can't resist rubbing a pound of salt into the wound:

Today we face a dynamic threat from enemies who understand how to use modern technology against us. Whether foreign terrorists, hostile nations, or other actors, they change their tactics frequently and seek to exploit the very openness and freedoms we hold dear. Our tools to deter them must also be dynamic and flexible enough to meet the challenges they pose.

Words fit for a Burgess Meredith sticking that long swab up Rocky's nose. "That openness and freedom thing? Forget it! He won that round! But I'll get ya back out. Here, look up. This'll sting, but it's your only shot. But ya gotta hit 'em hard and don't waste time!"

How much blood is on the canvas? We don't know. We can only obsess over nothings. Real inquiry would start with why Alberto Gonzales and Andrew Card paid a "Get well or else" visit to John Ashcroft, the call that nearly triggered a mass resignation. Then we could read this law and decide if it would have been better named "The Retention of Conscientious Civil Servants Act."

We're not totally in the dark, just in that realm of the plausibly deniable tailor-made for conspiracy theories. The hint, withdrawn as soon as it was floated, was about data-mining. This Protect America law has lots on that, enough to keep critics in a tizzy amid chants from the "Trust Me" Chorus, which even now is warming up.

Will more come out in leaks? Less likely now than on Friday. When Bush sets his mind to plugging leaks, why, there's no stopping him! Even as the bill was being railroaded through Congress, he raided the home of Thomas M. Tamm, the former DOJ attorney alleged to have leaked the NSA spy program. His computer wae seized along with his kids'. (No word yet on the whereabouts of their teddies and blankies.)

Sometimes it takes a leak, sometimes a plug, to send the right message, but it's always the same: "Don't mess with us if you know what's good for you and yours – and this means you."

Ben Franklin all those other Framers are through spinning in their graves. They're waiting for their bones to be dug up for judicial waterboarding so they'll confess to their original intent and bless all these unknown trade-offs of liberty for security. All that's spinning now are the wheels in five heads.

Meanwhile over at the House, there was this Saturday night theatric from Nancy "Do-Over" Pelosi in a letter to Congressmen Conyers and Reyes:

… Many provisions of this legislation are unacceptable, and, although the bill has a six month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken.

Accordingly, I request that your committees send to the House, as soon as possible after Congress reconvenes, legislation which responds comprehensively to the Administration’s proposal while addressing the many deficiencies in S. 1927.

Thank you for your attention to this request and for your service to our country.

I have a whimsical picture of what's behind this eerie comeback to the signing statement, eerie in that it's tantamount to a legislature saying "We don't mean what we're doing!": On hold with her travel agent to book an overseas vacation, she read the bill and yelled, "Hey, what's this? These buggers could tap my phone!!"

The reason I raised the question about bart's assertion regarding the oregon "Islamic charity", jao, was that GWB appears to be asking for blanket immunity be granted to - well - whoever after 9/11. Bart references a group in Oregon as reinforcement of the value of the TSP.

Yet, the activity that the Oregon group was prosecuted for, if I'm thinking of the same Islamist organization on Oregon Bart is referencing, took place before 9/11. Since the original post regarded this "immunity for whomever after 9/11 we can't say exactly why just allegedly whomever" request from the pres, I wanted to clarify whether or not his referenced activity was before or after 9/11.

[Dubya]: When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.

"Careful what you ask for. You might just get it."

If Dubya wants Congress to revisit these changes, they might just trim back some of the provisions instead, like the warrantless 'certifications' by Abu Gonzales as to what he "reasonably believes" (when he actually remembers anything), if we can pressure the Democrats to grow a friggin' spine.

Oh. Right. Nevermind. Anything that Dubya doesn't want will be blocked by those brave Republicans that are willing to go to the mat to oppose the "obstructionist" Democrats who are in bed with bin Laden....

Am I correct when I read that to mean it could even be a U.S. citizen who just happens to be "located outside of the United States"?

Yes. Gone is the concept of a "United States person" (albeit, 50 USC § 1801(f)(1) limited its applicability to such "U.S. persons" within the United States). 50 USC § 1801(f)(2) didn't make such a distinction, instead concerning itself with any person within the U.S.

[Prof. Balkin]: Apparently "allegedly helped us stay safe" is Bush Administration code for telecom companies and government officials who participated in a conspiracy to perform illegal surveillance.

That "conspiracy" included both elected branches of government with notice to the FISC.

[Assuming arguendo your characterisation of "both [the] elected branches" participating, which is by no means established, and certainly not on the public record] Does that make it "legal"?

Given that heavy majorities of Congress just granted the telecoms immunity from NGO litigation when the government makes future requests to provide access for the TSP, apart from spite at the opposition party in the WH, I cannot see the reasoning for denying similar protection for prior instances when the government asked the telecoms to do the same thing.

Ummm, because one is now "legal", while the other was against the law. At least, that would be my "reasoning". What is yours?

"The telecoms are providing a substantial public service which, if used prior to 9/11, would very likely have disclosed that al Qaeda cell well before the attack."

Objection, your Honour: Assumes facts not in evidence.

What we do know is that sitting around, waiting for translation, was an intercept that would have provided an indication, maybe a strong one, that somethingwas afoot. And no one is claiming that this intercept required any new FISA law changes.

Sorry, didn't see this befor eposting above. I have no problem ignoring Charles compeletely. If we decide that "Bart" is up to his usual, I can see just ignoring him too. Is "Bart"'s stuff above substantive enough for response? Or do we say to ourselves and the other participants, "Objection, asked and answered"?

That said, I'll see if I can confine myself to responses specifically to the posts themselves. Now back to the regularly scheduled programming.

I suggest that the title for this last post, from JB, should be changed to "The President's Warrantless Allegations."

By the way, as I have commented before, for Charles to use the term "pogrom" in the way he does reveals a surprising shallowness. The term is strongly connotative of anti-jewish riots in which jews had their property destroyed and were often slaughtered by the rioters.

Not knowing much about the commentator using the handle "Charles" I cannot say whether I am surprised, by this usage. However, taken at its best it shows an astounding failure to understand the history behind a well known word, and at its worst suggests that the commentator thinks that pogroms were amusing and equatable to blog-arguments.

Not at all, Pete. The Bush-haters are far beyond a simple coup d'état attempt at this point. If they are indeed successful, and millions of Americans die from the next terrorist attacks, it will have been much worse than any other "pogrom" IMHO.

Ron Suskind's book The One Per Cent Doctrine provides many of the fill in detail on the alleged assistance. It has been astonishing to me that the details in his book remain largely unknown, even unreviewed. Shame on us all.!!!!!

Here's the info I have: Starting in 2000, the CIA placed Atta under surveillance in Germany. He was trailed by CIA agents, and was observed buying large quantities of chemicals. Once Atta entered the United States on June 3, 2000, through Newark, New Jersey, the CIA says its surveillance of Atta ended. If anyone else wants to answer my question, feel free.

If you believe prescience on the part of our CIA could've guaranteed the prevention of 911 from happenning, you are living in a fool's paradise. All one has to do is look at the way intelligence is manipulated by our government to know that is true: remember the intelligence that told us that Saddam had biological weapons of mass destruction? Denial, Denial, Denial. Sorry folks, but I not willing to stand by idly while this administration rapes the constituion and makes a mockery of due process and the law. Great minds have long warned us about the consequences of using fear and a false sense of security to trample on individual freedoms. History need not repeat itself,and when it does it is by our choice, not "tragic circumstances." For those of you who so doggedly embrace the ideals of spying, lying and torture as a means to an end: how can we justify it here, yet condemn it when practiced by our "enemies"?

When we travel out of country and then return, we can be subjected to any form of search at the entry point.We are not 'in' the US yet. They could strip search, ask me all kinds of questions, do whatever.

So why is this any different?

To me the difference seems to be that I know I'm being searched, I experience the invasion, and the process costs time and resources which are limited. If everyone was searched, lines would backup, people would start to complain, it would be a political nightmare. People would start to ask why, and there would be lots of public knowledge of the arbitrary behavior.

The new law allows our government to listen in and maybe record conversations which are pretty cryptic. Twist the words we use, tag common words with sinister meanings. Hmmm, sounds familiar.

Previously we could blame the Bush Admin for hiding things, now it is lawful and our entire elected government and citizenry is to blame. Maybe we deserve it.

It's not clear that it is worth responding at this point, except to express amazement that, admittedly, does not contribute substantially to the really important issues.

Charles, in answer to a comment I made above, now claims that "bush haters" have gone beyond a "coup d'etat" against the government of the United States. It is almost inconceivable that Charles actually believes his outlandsish claim. Is Charles suggesting that the US government has undergone a coup?

[Directed to Charles,] this is pathetic. You are claiming that some unidentifiable group called "bush haters" has attempted a coup, on the same discussion page that is concerned with the democratic majority passing legislation favorable to the president. Your claims are so off-the-wall that it suggests you don't even pay attention to what you type.

Chalres' use of words like "coup d'etat" and "pogrom" reveal that he has little understanding of political terminology and history, and evidently has no desire to learn.

Nothing is a "guarantee" but I was asking about what was more "likely" to have disclosed the plot -- what would you have preferred on American Airlines Flight 11 that morning -- an armed CIA agent tracking Atta, or not?

Pete L.:

For the record, I will not resort to ad hominem attacks. So, if you ever make a substantive argument, I will only address the argument, rather than you personally.

While I think folks should generally heed ML's advice re feeding the trolls, it's interesting to see how some are celebrating today, the 6th anniversary of the day Bush got the "Bin Laden determined to Strike in U.S." memo.

Before this goes any further, someone ought to point out that some of those who comment here are totally unable to let anyone else get the last word. This means that, as long as anybody says something related to a comment they left, it will draw a reply, even if there is nothing in the reply.

The worst-case scenario, of course, is when two of these folks get into it.

I wonder if Bush and his advisers have correctly assessed the Democratic leadership of Congress. There are, of course, certain people with whom the correct approach is to kick them until they apologize. This is known to work with bullies, for example.

On the other hand, if the recipient is more the passive-aggressive type, this can ultimately draw a response out of all proportion to the offense. If that's the case, the mind boggles at what the response would be, considering that the proportional response to rampant illegal activity by the President would be impeachment.

Bart wrote: Reportedly, the TSP has broken up other cells and according to a convicted "Islamic charity" in Oregon, broke up al Qaeda funding networks.

Didn't the busted "Islamic Charity" in oregon get caught with a search warrant for illegally concealed transfer of funds that happened in 2000?

The only legitimate law suit I have seen against the TSP was an allegation by an "Islamic charity" convicted of financing al Qaeda that they were accidentally provided a copy of a document which indicated that they were a target of TSP surveillance and that this surveillance may have been used to develop evidence against the al Qaeda front group. In this case, the plaintiff arguably had standing and a legal harm.

Taking the al Qaeda front group's allegations at face value, the TSP may have assisted in breaking them up. I would be amazed if this were the only case. However, the media appears to be singularly uninterested in uncovering success stories, so there is no way of knowing for sure.

Ron Suskind's book The One Per Cent Doctrine provides many of the fill in detail on the alleged assistance. It has been astonishing to me that the details in his book remain largely unknown, even unreviewed. Shame on us all.!!!!!

The One Percent Doctrine is actually a pretty sympathetic look at the issues of fighting an asymmetrical war against terrorists and the interviews Suskind were giving to promote the book were quite supportive of the Administration.

D. Lewiston, bitswapper, Bartbuster: I refer you to Marty Lederman's plea here... And one of you needs a new handle. If your only purpose is to engage the trolls here, you are part of the problem.

You were actually one of the very few here who would actually substantively engage my arguments. It is sad that you and Professor Lederman are no longer willing to even put in the effort to deal with opposing points of view any longer.

Too bad.

An interesting dialogue has now turned into an exercise in avoidance. It sort of reminds me of the reaction of the orangoutangs to Talyor's testimony by holding their hands over their ears at Cornelius' heresy trial on the Planet of the Apes

Is this how law schools operate these days?

However, if you are hoping that shunning will cause me to silence my opinions, you are mistaken. You will have to shut your eyes to this heretic's posts and scroll past in the spirit of true intellectual inquiry.

"...the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation..."

I'm trying to think of a situation in which it would be important to protect people from liability for doing something that you're not sure they did. Or that you're not willing to admit they did. If they deserved protection, would there be any shame in admitting the allegations were true?

As for the question of whether the new legislation effectively kills the Oregon case brought by the Islamic charity, I think it does.

Yes, the alleged surveillance occurred previously, but the language of the new bill would seem to control how courts can interpret the law in pending and future court cases. The new Section 105A of FISA declares flatly:

"Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

I think that construction effectively croaks not only the civil suits claiming FISA violations, but also any future criminal prosecutions of prior violations.

For instance, Deidzoeb, actual covert CIA agents risking their lives working to defend the United States (insert: Valerie Plame, here, if that helps) "deserve" protection for said alleged work even though the work itself cannot be disclosed to the public. Does that make sense?

However, if you are hoping that shunning will cause me to silence my opinions, you are mistaken. You will have to shut your eyes to this heretic's posts and scroll past in the spirit of true intellectual inquiry.

# posted by Bart DePalma : 5:06 PM

What was that you said about living vicariously through others when you have no life of your own?

I'm trying to think of a situation in which it would be important to protect people from liability for doing something that you're not sure they did. Or that you're not willing to admit they did. If they deserved protection, would there be any shame in admitting the allegations were true?

I agree. The duplication of the "alleged" in Bush and McConnell's comments is an odd thing, not because of the coordination of message (which is certainly nothing new), but the preposterous implication that the government doesn't know who is involved in intelligence gathering.

One is almost encouraged to read it as a way of extending protection to agencies that did NOT assist the government, but have been alleged to do so. One underlying question that remains is: who is allowed to make such allegations? If I claim that the California State Parka gathered intelligence on me, is that sufficient to grant them protection from liability? Does the government have the sole ability to make such allegations, thereby shifting protection to whomever they deem fit to receive it?

If this torturous language were being used solely to protect the identity of those who helped the government, then why not simply say (in the case of McConnell's comment):

Second, those who assist the Government in protecting us from harm must be protected from liability. This includes those who have assisted the Government after September 11, 2001 and helped keep the country safe. I understand the leadership in Congress is not able to address before the August recess the issue of liability protection for those who have helped the country stay safe after September 11, 2001...

The use of "allegedly" does nothing additional to protect the identity of people that have helped the government, other than to "deny their existence." And by "deny their existence," I mean "verify their existence with a bullet point and underline it with an adverb."

I think Jack is on to something...maybe the impetus for the odd word choice is a dearth of evidence or proof that anything these "alleged protectors" have done has actually helped our security.

I haven't read every comment, nor all the articles linked by Professor Lederman below, but I think something in this bill (law, now) has gone overlooked.

In particular, Pelosi and the Democrats, along with posters and commenters on this site and others, continue to talk about the 6 month "sunset" provision.

Having read section 5, subsection (d) (the very last subsection), it appears quite clear that any of the "programs" authorized during the next six months will "remain in effect until their expiration".

Though I have not read the entire act which this amendment amends, I don't know of any limitation on the maximum duration of any program authorized under it. In other words, if Program X were authorized, and by its terms would expire in 10 years (or more), then the six month sunset would have no effect on that program. Thus, even if congress does NOT reauthorize the "Protect America Act", any programs authorized thereunder (in other words, anything and everything the administration can conceive of and get the paperwork done with respect to) will continue in place indefinitely.

Thus, congress cannot simply "undo" this abomination by blocking its reauthorization. Instead, it will need to muster the votes to repeal it by a veto-proof margin. Which obviously won't happen.

This is not something that will go away soon. Even if the Democrats in congress come to their senses and somehow acquire some guts, which itself is highly unlikely.

As I read it, authorizations made under these amendments to FISA have a one-year maximum term:

SEC. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States ...

So an authorization made near the end of the six-month sunset period of the legislation could last another year, a total of about 18 months from now. But I don't see how it would be permanent.

So not permanent, but right through the end of Bush's term of office. So, if we can assume BushCo will actually leave office at the end of the term, then the so-called "saving grace" that is the sunset provision cannot possibly have any effect on the administration or its surveillance powers. I understand.

And another thing: if a communication is routed through a satellite orbiting the earth, is that communication considered to be outside the U.S.?

Well, even Dick Cheney admits that it has to at least be a 1% possibility -- just because someone like Tom Clancy can think up some catastrophe like that doesn't make it likely to happen -- especially if we elect the Republican as President. There are plenty of other things to worry about today without worrying about tomorrow and beyond. Is that less condescending?

I don't know that this discussion is particularly instructive (as you allude), but my point in the last comment was that an "unforeseen catastrophe" doesn't necessarily mean some doomsday Clancy-type scenario, but might be something as simple as a "credible threat", intercepted through these surveillance activities, that a terrorist group plans to bomb some polling places on election day. Good cause to "temporarily" suspend elections. For the safety and security of the electorate, of course.

You can call this "tin foil" if you like, but excuse me if at this point in time I am not entirely convinced of the good intentions or good faith of the people in this administration. There is ample evidence of previous attempts to use the machinery of government (e.g., the Justice Department) to influence elections, and it does not, from a very objective standpoint, seem such a great leap to imagine that similar methods might be used to do something along these lines.

Note also that I have not predicted this will happen; I'm merely saying that it isn't out of the realm of possibility - and thus should not be so casually (and condescendingly) dismissed.

My main point was: "There are plenty of other things to worry about today without worrying about tomorrow and beyond." That being said, it's definitely a possibility that terrorists will bomb some polling places on election day -- I'm surprised they haven't before now -- 9/11 was election day in NYC if I remember correctly. But, I doubt that the GOP would call off elections because of a couple of bombs though -- our advantage in absentee balloting will be more than enough to take care of that.

I also left you a post about Bill Clinton firing the U.S. Attorney for investigating Dan Rostenkowski on your own blog. I'm looking forward to Parts II and III of your series.

Sorry, Marty. I don't usually engage trolls, but this one time I'm gonna have to…

Presumably, Charles, you supported Clinton's effort in 1996 to make it a whole lot harder for terrorist groups to exploit international banking laws to get money (I'll make this one easier for you--Bush actually signed it into law in 2002.)

Presumably, you also praised Al Gore's efforts in 1997 to make airlines safer, including proposing that airline cockpits come with lockable doors. (You would have, of course, criticized the Republican Congress for not adopting Gore's suggestions; you also would have criticized the Bush administration for not adopting Gore's recommendations.)

Presumably, you also praised the Clinton Administration for successfully preventing an al-Qaeda attack on the L.A. airport on Jan. 1, 2000.

And finally, of course, you would have praised Sandy Berger for giving Condi Rice a 6-hour briefing warning about Al-Qaeda. Oh, and you would have praised the commission co-chaired by former Dem. Senator Gary Hart in early 2001 for warning of a terrorist attack.

I say "Presumably." But of course it would help if you could agree to all those things in your next posting. See, an awful lot of Republicans try to ignore the things Democrats did or tried to do to prevent terrorism in the 90s, things which would have made the attacks of 9/11 significantly harder to pull off. Just tryin' to keep you honest.

I was walking down the street when someone dropped something, it was a piece of paper, there it was written the link of this site so I took it home and now I think it's fabulous, I also saw a pill of Generic Viagra lying next to the paper.